upon alienation attempting to be imposed by said instrument, creates a cloud upon plaintiff's title, impairs its value, and impedes her in the use and enjoyment of said property, "and also embarrasses her in her capacity as the executrix of said last will and testament, inasmuch as by reason of the conflicting claims as to the construction of said last will and testament and as to the nature and extent of plaintiff's interest and estate in her own right in the property, real and personal, of which said testator died seised, and as to her interest, right, and duties in reference to said property in her capacity as executrix of said last will and testament, it is not proper for her, and she is unable, to determine the nature and extent of such interest, rights, and duties, if any, as executrix." The prayer is to the effect that plaintiff be declared the owner in fee simple of all the real estate and the absolute owner of all the personal estate of which Delzell died seised, discharged of all claims in any of the children hereafter born to her, or of their descendants, and of all claims of the neph-❘ ews and nieces of the testator and their de scendants, and that she is not, in her capacity as executrix, nor is her successor in said trust, charged with any duty of managing or controlling any of the property, real or personal, of said testator, nor of selling the same, or dividing the proceeds thereof, except as may be necessary in the ordinary course of administration for the payment of debts. The identities of the plaintiffs are distinct. The executrix might have brought the action in such capacity, and made herself as an individual a defendant, or individually she might have made the executrix a defendant to her action. And in either of such events she might have employed and been represented by counsel in both capacities. In re Batchelder, 147 Mass. 470, 18 N. E. 225; Johnson v. Graves, 129 Ind. 124, 28 N. E. 315; McBurnie v. Seaton, 111 Ind. 56, 12 N. E. 101; Lomerson v. Vroom, 42 N. J. Eq. 290, 11 Atl. 13. Having brought the action jointly, the same rule applies as to other actions brought by two or more persons. "A complaint must proceed upon some definite theory, and upon that theory it must state facts sufficient to constitute a cause of action in favor of all who join as plaintiffs." Gas Co. v. Spaugh, 17 Ind. App. 683, 688, 46 N. E. 691, 692; Brumfield v. Drook, 101 Ind. 190, 197; Martin v. Davis, 82 Ind. 38, 41. "To entitle two or more persons to join as plaintiffs, it is not sufficient that they each have a cause of action arising out of the same transaction or matter, if the relief sought by each be distinct and unconnected. The plaintiffs must have a common interest in the subject of the action and in the relief. Each must be interested in the relief sought by the other." Martin v. Davis, supra. "For no separate and distinct causes of action in favor of different parties can be joined together against the same party.

Hence, although a complaint may state one cause of action in favor of one plaintiff, and another in favor of another, if the same cause of action is not stated in favor of all the plaintiffs, the complaint is insufficient on demurrer for want of facts." Smith v. Roseboom, 10 Ind. App. 126, 129, 37 N. E. 559, 560. If the meaning of the will is correctly stated in the complaint, then the action might be treated as one to quiet title in Anna D. Hughes individually. Thus treated, it states no cause of action in favor of the executrix, whose duty it is to uphold its provisions, and who cannot be entitled to have her title quieted, since she can have no title therein, the right set up by the heir being exclusive.

It remains to be considered whether the pleading is sufficient as to both plaintiffs, treating the action as one to obtain the construction of the will, whether it depends upon the facts averred. The averments relative to the right of the heir to have her title quieted cannot be considered as tending to show reason for construction. Title might be quieted when necessary to full and adequate relief, but the primary question must be determined without reference to such incidental matters. The law in respect to such actions and the right to maintain them is stated as follows: "The doctrine which seems to be both in harmony with principle and sustained by the weight of authority is that the special and equitable jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts; that a court of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief, and will never exercise a power to interpret a will which only deals with and disposes of purely legal estates or interests, and which makes no attempt to create any trust relations with respect to the property donated." Pom. Eq. Jur. § 1156. "We think the law is well settled that, where no trust is created, neither the heir nor the devisee who claims only a legal title in the estate will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the will." Minkler v. Simons, 172 Ill. 325, 50 N. E. 177; Edgar v. Edgar, 26 Or. 65, 37 Pac. 73. "The right of an executor to commence an action for the construction of a will of real estate depends entirely upon the question whether he is invested with a trust under the will in reference to the subject-matter of the devise; and it is only in such cases that a court of equity, on the assumption of its right of supervision over trusts and trustees, will assume jurisdiction." Dill v. Wisner, 88 N. Y. 153, 160; Torrey v. Torrey, 55 N. J. Eq. 410, 36 Atl. 1084. The complaint on behalf of the executrix contains allegations evidently designed to meet the requirements above stated.

Item 3 of the will provides for the payment of $25 annually to the managers of the

Crown Hill Cemetery, to be used in taking care of burial lots. Said sums are made a charge and first lien upon certain specified real estate. It is conceded that the trust is valid, and no question is discussed relative to it, nor are its terms the subject of doubt.

Item 2 of the will contains the following provision: "My unimproved real estate in Marion county, Indiana, may be sold by my executrix, and also so much of my land near Brightwood as may be needed for railroad switching purposes." The complaint shows further that at the testator's death none of his real estate in Marion county was unimproved, except that referred to as "my land near Brightwood." The allegation relative to the Brightwood land is as follows: "A duty or trust is imposed upon this plaintiff in her capacity as executrix of said last will and testament under the provision of item 2 thereof, to sell so much of the real estate near Brightwood as may be needed for railroad switching purposes." It is also alleged that after the plaintiff's death her successor under the terms of the will is to sell all the real estate, and divide the proceeds among the testator's nieces and nephews of his own blood. These two averments may be considered together. It is not alleged that any of the Brightwood land is needed for railroad switching purposes, or that it ever will be so needed. The sale of real estate by the plaintiff's successor is not a matter with regard to which the plaintiff needs any instruction. When the contingency upon which action is dependent shall arise, it will then he time enough to make the application. Wills are not construed to meet possible contingencies which may never arise. The time and attention of the court cannot be engaged to solve speculative doubts. It is only when the executor is under a present necessity of acting, or where he has reason to believe that he will soon be called upon to proceed under the doubtful provision, that he is entitled to instruction. Bullard v. Attorney General, 153 Mass. 249, 26 N. E. 691; Bonnell's Ex'rs v. Bonnell, 47 N. J. Eq. 540, 20 Atl. 895; Balsley v. Balsley, 116 N. C. 472, 21 S. E. 954; Morse v. Lyman, 64 Vt. 167, 24 Atl. 763.. The following language of the supreme court of North Carolina is applicable: "The action seems to be predicated upon the general idea that a court of equity has a sweeping jurisdiction in reference to the construction of wills, which Chief Justice Pearson said, in Tayloe v. Bond, 45 N. C. 5, was an erroneous idea. In that case the learned judge has given a clear exposition of the jurisdiction of a court of equity in the construction of wills, and from it we deduce the following rule as established: That the jurisdiction is limited to such as are necessary for the present action of the court, and upon which it may enter a decree or direction in the nature of a decree. It will never give an abstract opinion upon the construction of the will, nor give advice,

except when its present action is involved in respect to something done under its decree." Little v. Thorne, 93 N. C. 69. The disposition of the estate after the death of the life tenant may involve the rights of persons not now in being, and does not affect any present duty of the executor, and cannot, therefore, furnish a basis for construction. Minot v. Taylor, 129 Mass. 160.

The final allegation of facts tending to give the court jurisdiction is that, as executrix, the plaintiff is charged with the duty of keeping the buildings on the real estate described in the will insured and in good repair. No such provision is contained in the instrument. It does contain a clause as follows: "Item 9. It is my will that my daughter Anna D. Hughes, subject to the specifications and bequests herein mentioned, during her lifetime shall have the sole and exclusive possession and control of all my personal and real estate, and shall receive and control all incomes and proceeds derived therefrom, to be kept by her and retained for her own use and benefit, in her own discretion, without accounting to any one; and after her death," etc. The duty of a life tenant to keep premises in repair attaches to him as a matter of law, and involves the execution of no trust under the will. No fund is shown to be on hand for distribution, and the allegations relative to personal property do not, therefore, present any question. Bullard v. Attorney General, supra. There is a general averment to the effect that the executrix is unable to determine to what extent trusts are imposed upon her or upon her successor by said will; but, in the absence of facts upon which to base the conclusion, it is not considered as sufficient to confer jurisdiction upon the court to construe the will.

Viewed, therefore, as a complaint by the executrix alone, facts are not stated sufficient to constitute a cause of action. Mrs. Hughes, as an individual, practically asserts the invalidity of the instrument. Item 3 and the clause appointing the executrix are alone regarded by her as of any effect. She claims ownership in fee simple as heir at law. There are no allegations in her interest tending to confer jurisdiction upon the court to construe the will. Were she the sole plaintiff, the averments made in her interest, instead of showing grounds for equitable jurisdiction, would show their entire absence. The New Jersey court of chancery, in a case decided March 14, 1899, said: "The complainant, who is the widow of Charles E. Fahy, claims by her bill that under the will of her late husband she takes a legal estate in fee simple in all his real estate. She asks the court to so decree as against her infant children. The question presented is manifestly a purely legal one, viz.: Whether a legal estate in fee simple is created by the terms of the devise. The complainant neither stands nor pretends to stand in the po

sition of a trustee or cestui que trust. No duty has been imposed upon her by the will as to the performance of which she might ask the direction of this court. The bill

is not one to quiet title. It does not contain the statutory requisites of such a bill. Under these circumstances it is plain that the legal question must be determined by a legal tribunal. Hart v. Leonard, 42 N. J. Eq. 419, 7 Atl. 865; Bowers v. Smith, 10 Paige, 193." Fahy v. Fahy (N. J. Ch.) 42 Atl. 726. Again, the same court says: "The position assumed by the complainant as absolute owner denies any trust either as executor or because of the added words of confidence in the abovequoted clause of the will. The argument of plaintiff's counsel is in the same line, claiming for Mrs. Torrey an absolute estate in fee simple in the testator's lands. Here is a statement of the dispute confined wholly to conflicting claims between different parties, each asserting a purely legal estate in lands; one as devisee in fee, the other as heir at law. The power of courts of equity to construe devises of real estate is limited to such dispositions as create or involve the creation of trusts. So far as a will of real property devises purely legal estates, and the devisees obtain purely legal titles to land, their enforcement belongs to courts of law." Torrey v. Torrey, supra. "Whether the devise failed because of the death of the mother before the father, the testator, was not an inquiry which the executors could make of the court under the established rules of practice [citing cases], and for the simple reason that a question of law is raised among heirs and devisees, and must be settled in an action between the contending claimants of the land." Tyson v. Tyson, 100 N. C. 360, 368, 6 S. E. 707, 711; Bailey v. Briggs, 56 N. Y. 413; Morse v. Lyman, supra; Little v. Thorne, supra, "The plaintiffs take whatever they may be entitled to under the will not in their character as executors or in trust, but in their own right. They present no question touching the proper disposition of trust funds, but request the court to inform them what their legal rights and those of defendants are in the property devised. The court might, with equal propriety, be called upon by the parties interested to advise them regarding the title to the land, the construction of a contract, or any other question of law. Such questions are not ordinarily adjudicated until it becomes necessary to decide them in proceedings instituted for the redress of wrongs. They are prospectively determined in courts of equity in behalf of trustees who, in the execution of the trust, are entitled to its protection. Trustees are not required to incur risk in the management or distribution of the trust fund. In cases of doubt they may apply for the direction of the court, or they may decline to act without its sanction, leaving the parties interested to bring their bill to compel a performance of the trust." Greeley v. City of Nashua, 62

N. H. 166. In the case at bar Mrs. Hughes asserts absolute title to the real estate described in the complaint. She is not thereby entitled to have the will construed. She might as well ask the court to construe a deed or contract under which she claimed title to real estate. The complaint, not stating a cause of action in her favor, is therefore not sufficient, even if its allegations were such as to render it sufficient were the executrix sole plaintiff.

Judgment reversed, and cause remanded, with instructions to sustain the demurrer to the complaint, and for further proceedings.

COMSTOCK, C. J., and BLACK, HENLEY, and ROBINSON, JJ., concur. WILEY, J., files dissenting opinion.

WILEY, J. (dissenting). I concur with my associates in the conclusion that, as the record comes to us, and under the assignment of errors, no question is presented as to the construction given the will by the trial court. The only question for review is the action of the court in sustaining the demurrers to the complaint, and I am constrained to dissent from the views entertained by a majority of the court as expressed in the prevailing opinion, holding that the complaint does not state a cause of action. In the majority opinion the material facts averred in the complaint and the provisions of the will are fully and plainly stated, and it is not necessary for me to state them here.

The first objection urged to the complaint is that it does not show a joint cause of action in appellee in her individual capacity and in appellee in her fiduciary capacity. If the facts charged do not show a community of interests as to all the plaintiffs, the complaint is demurrable for want of sufficient facts. The complaint avers that appellee, as executrix, is unable to construe the full and true intent of some of the provisions of the will, and for this reason she, in her fiduciary capacity, is unable to determine her duties in the administration of the trust imposed upon her. Upon the proper construction of the will depend the rights of the executrix and of all the parties to the action. I have no doubt of the right of an executor or executrix to go into a court of competent jurisdiction, where there are contending and conflicting interests arising under a will, for the purpose of having such will construed, so that his or her duties may be made plain. It is not only a right, but a duty, incident to the management and control of the trust. Neither can there be any doubt that appellee, in her individual capacity, had the right to go into court to have her rights under the will determined. The statute expressly provides that "all persons having an interest in the subject-matter of the action," etc., shall join as plaintiffs. Section 263, Burns' Rev. St. 1901. In Durham v. Hall, 67 Ind. 123, it was held that persons who have any interest

in the relief demanded are properly joined as plaintiffs. The law does not encourage multiplicity of suits, and it has been held, in some instances, that persons may join as plaintiffs to avoid such multiplicity. Heagy

v. Black, 90 Ind. 534; Turnpike Co. v. Sidener, 40 Ind. 424. If for no other reason than that to avoid a multiplicity of suits, appellee in her individual capacity and appellee in her fiduciary capacity were properly joined as plaintiffs. In New York, under a statute quite similar to ours, it was held that an executrix could join as plaintiff with a devisee under the will for the collection of rent. The court held that the executrix had a common interest with the devisee in the subject-matter of the action, and that this was good ground for joining in a court of equity. Armstrong v. Hall, 17 How. Prac. 76. In that case the court suggested that the defendant ought not to complain that plaintiff had commenced one suit against him when he ought to have commenced two. See Fish v. Howland, 1 Paige, 20; Conro v. Iron Co., 12 Barb. 28. In that case rent had accrued on the lease in the lifetime of the testator. As executrix, appellee was not interested in the demand for rent which accrued after the testator's death, while in her individual capacity she did not have any interest in the rent which accrued before his death; yet it was held that they were properly joined. Under the facts pleaded, Anna D. Hughes, in her individual capacity, is interested in having the will construed, and Anna D. Hughes, in her fiduciary capacity, is likewise interested. As to the right of appellee in her individual and fiduciary capacity to Join as plaintiff, see Stilwell v. Carpenter, 2 Abb. N. C. 238; Day v. Stone, 15 Abb. Prac. (N. S.) 137; Hunt v. Smith, 1 Wkly. Dig. 13. My conclusion is that the appellee Hughes, in her individual capacity and in her fiduciary capacity, were properly joined as plaintiffs, and that the facts stated in the complaint were sufficient to entitle her to have the will construed, and the demurrers were properly overruled.

The judgment should therefore be affirmed.

pointed, the approval of the final account of an administrator is not an adjudication that he has turned into the estate all the assets belonging to it, becoming conclusive after three years, but, without setting a final settlement aside, an administrator de bonis uon may be appointed to take charge of any assets omitted from the former administration.

2. The right of an administrator de bonis uon to sue can be questioned only by plea in abatement denying such right.

3. For purposes of administration the situs of a debt is the domicile of the debtor, and not the place where the evidence of the debt is located.

4. An administrator de bonis non sued to determine the ownership of certain building stock which he claimed as an asset of the estate of his decedent, and which was also claimed as an asset of the estate of the former administrator, and was in possession of her executor, a corporation domiciled in another state from that in which the building association was situated. It was sought to restrain the administrator of the former administrator from col

lecting the certificate, and the association from paying it, but no personal judgment was sought against either of the parties defendant. Held that, since the action only sought a judgment in rem, the courts of the state where the building association was located had jurisdiction of the action.

5. Under Burns' Rev. St. 1901, §§ 320, 321, providing for service by publication in actions against foreign corporations, and declaring that personal service on a nonresident defendant shall be equivalent to service by publication, personal service of summons on the administrator of the former administrator, though in another state, gave the court jurisdiction of the person sufficient for the determination of the ownership of the property already within its jurisdiction.

6. The fact that the defendant had inventoried the certificate as an asset of the estate of its decedent did not destroy the jurisdiction of the court over the subject-matter.

7. It appearing that the stock in question was purchased with money belonging to the estate of plaintiff's decedent, the fact that the stock sought to be recovered was not in existence at the time of his death did not rob it of the character of an unadministered asset.

8. Where land was purchased by a husband and wife jointly, each furnishing a part of the funds, and title was taken by the wife with intent to defraud the husband, but ostensibly to avoid the necessity of a guardianship, the husband being of unsound mind, a constructive trust in favor of the husband arose despite the fact that when, under ordinary circumstances, realty is taken in the wife's name, and the husband pays the purchase price, no trust results, and a parol agreement that she shall hold as trustee cannot create one.

9. The wife was acting in an acknowledged fiduciary capacity at the time she took title, so that a trust would arise if the element of fraud had been absent.

10. In an action by an administrator de bonis non against the executor of the former administrator to recover property alleged to belong to the estate of plaintiff's decedent, but in the possession of and claimed by defendant as part of the estate of its decedent, the heirs and legatees of plaintiff's decedent, though the only distributees, are not necessary parties, and are not incompetent to testify to statements of defendant's decedent, by Burns' Rev. St. 1901, § 506, providing that in suits in which an administrator is a party involving matter which occurred during the lifetime of decedent, where a judgment is asked against the estate, "any person who is a necessary party to the record shall be incompetent to testify as to such mat ters."